People v. Day, 2019 IL App (4th) 160217 (January). Episode 588 (Duration 16:46)

He wasn’t behind the wheel but state still proved he was driving.

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See also the subsequent opinion: People v. Day, 2019 IL App (4th) 160217-B  (September).

Issue

According to defendant, the State failed to prove, beyond a reasonable doubt, that he drove under the combined influence of alcohol and cannabis.

The Truck

At the southeast corner of the intersection, a black 1975 Chevrolet pickup truck had come to rest.

The truck had “front[-]end damage to the middle grill, bumper region,” as if it had “struck a tree or pole or something of that nature,” and leaves were entangled in the grill. The engine was off, but the headlights were still on, and the key was in the ignition.

Nobody was in the truck or anywhere in sight.

“On the driver’s seat floorboard[,] there was a black cell phone and one orange flip-flop.”

The Camper

About three-quarters of a mile north, in the 5400 block of Kruse Road, a camper, or “topper,” was on the ground.

It had sustained extensive damage to the front. Once it became separated from the vehicle, it had more or less collapsed on itself.

The Tree

The 5400 block of Kruse Road was the “original accident scene”—there police found a tree that the truck apparently had struck—and that, after the camper became separated from the vehicle, the vehicle continued south from the accident scene.

The Defendant

About 57 minutes after police arrived at the scene, a call came in from a third party, requesting a welfare check of “a white male” who was walking south on Illinois Route 121, south of the tree’s location.

Police returned with defendant, whose last known address was about six to eight miles away from the intersection of Kruse Road and Illinois Route 121.

Defendant had “red bloodshot eyes.” He was shoeless, and his bare feet were muddy. A strong odor of an alcoholic beverage was coming from his breath, and he swayed from side to side as the deputy talked with him. The deputy that  located and transported defendant to the scene took a small white tin from the defendant.

Inside the tin was a small amount of green leafy substance, which field tested ­ positive for cannabis.

Defendant admitted to the deputy that, before the accident, he consumed beer and smoked cannabis.

Because defendant appeared to have a cut on his upper lip, Herbert asked him if he had suffered any injury in the accident. Defendant answered no and explained that the sore on his upper lip was herpes, which he had caught, he said, from prostitutes.

Defendant admitted those were his shoes and phone located near and in the truck.

Defendant refused all testing.

Other deputies testified to his drunken antics at the jail.

“Buddy Young”

Herbert asked him if he had been the driver. Defendant answered he had not. He said that, instead, his friend Buddy Young had been the driver and that, after the accident, Young had chosen to walk north on Illinois Route 121 whereas he, defendant, had chosen to walk south. Defendant was unable, however, to provide any description of Young other than to say he was “a black male.”

Herbert asked defendant how long he had known Young. Defendant answered he did not know. Herbert asked defendant where Young could be located. Defendant again answered he did not know.

No FST’s

A field sobriety test and chemical testing were not essential to proving he was drunk.

“A DUI conviction may be sustained based solely on the testimony of the arresting officer, if credible.” People v. Janik, 127 Ill. 2d 390, 402 (1989). Three police officers who had observed defendant testified he was highly intoxicated. It would be reasonable to infer that the reason why he refused to undergo a field sobriety test and a breath test was that he knew these tests would confirm he was under the influence. See People v. Garstecki, 382 Ill. App. 3d 802, 813 (2008).

Yeah But Was He Driving?

 Further applying the same deferential standard of review, we find sufficient circumstantial evidence that defendant drove the pickup truck while he was intoxicated.

1. By his own admission, his cell phone and flip-flop were on the driver’s-side floorboard of the truck. Although he told the police that Buddy Young had been the driver, he did not know how long he had been acquainted with Buddy Young or where Buddy Young could be reached—leading to a reasonable inference that Buddy Young was a fictitious character and leading, in turn, to a further reasonable inference that the reason why defendant lied was that he, in fact, had been the driver.

See also Episode 540 – People v. Gocmen, 2018 IL 122388 (September) (In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.)

2. “A false exculpatory statement is probative of a defendant’s consciousness of guilt.” People v. Milka, 211 Ill. 2d 150, 181 (2004).

3. That defendant, six to eight miles from home, left behind his cell phone and shoes and set out on a barefooted hike down the highway could be suggestive of a hasty departure, as if he felt a pressing need to put distance between himself and the scene of his crime.  See People v. Henderson, 39 Ill. App. 3d 502, 507 (1976) (concept of flight embodies more than simply leaving the scene of the crime. The accused must be attempting to avoid arrest or detection, actions which implies consciousness of guilt).

4. And, again, a defendant’s refusal to submit to chemical testing is relevant circumstantial evidence of his consciousness of guilt.

Viewing the evidence in the light most favorable to the prosecution, we draw the inference that defendant opposed the chemical confirmation of his intoxication precisely because he had been driving; otherwise, it would not have mattered how intoxicated he was.

5. It would, after all, be a natural inference that defendant, as the registered owner of the truck, was the person who had driven the truck. The jury did not need the deputy to testify that defendant was the registered owner. The jury could have readily inferred as much from what the police did in their investigation.

It is commonly known that the first thing police officers do is run the license plates.

There appears to be no evidence that when the deputy came upon defendant, a mile from the scene of the accident, he asked defendant if he had been in the accident. Instead, he asked defendant for identification, and when he looked at defendant’s state identification card, the name he read apparently was reason enough to take defendant up the road, to the scene of the accident.

It was reason enough, the jury may well have inferred, because the deputy had run the license plates and defendant’s name had come back as the registered owner of the truck. One might infer that was why, when defendant was brought back to the scene, the deputy talked to defendant as if it already were a given that he had been in the accident. 

For all those reasons, we find sufficient evidence that the driver was defendant.

Evidence Of Truck Registration

At one point in the trial the prosecutor asked the deputy on direct examination:

“Q. What did you do to try to figure out who the driver [of the pickup truck] was?

A. I ran their license plate through M.S.O. dispatch, and they advised it checked back to two individuals. MR. REUTER-

THE COURT: Hearsay. Sustained.”

Later in her direct examination, the prosecutor asked why defendant was brought with him to the scene of the accident.

The deputy answered: A. One of registered owners of the vehicle, defendant.­ MR. REUTER-

Objection, Your Honor. You want us to approach, or—

THE COURT: I’m going to ask them to disregard the registered owner part of this and say he brought back defendant.

On redirect examination, the prosecutor asked the deputy:

“[PROSECUTOR]: When another deputy located an individual by the name of William Day, why did you ask that he be transported back to your scene?

A. The vehicle checked to William Day.

MR. REUTER: Objection, Your Honor.

PROSECUTOR: Your Honor, I would argue that that is not offered for the truth of the matter asserted, but why he was proceeding in the investigation in the manner he did.

THE COURT: I think the evidence we have is that he was brought back. I’m going to leave it at what we have. We have evidence that he was brought back. So, sustained.”

Evidence of Police Steps In The Investigation

Defendant alleges prosecutorial misconduct.

According to him, the prosecutor repeatedly attempted to elicit testimony from the deputy that the pickup truck was registered to defendant, even though, in response to defendant’s objection, the trial court clearly ruled, from the start, that such testimony was inadmissible hearsay.

This was a reasonable argument.

Case law teaches:

“Statements are not inadmissible hearsay when offered for the limited purpose of showing the course of a police investigation where such testimony is necessary to fully explain the State’s case to the trier of fact.” People v. Jura, 352 Ill. App. 3d 1080, 1085 (2004). In other words, “a police officer may testify about conversations with others to show the steps in his investigation so long as this testimony is not used to prove the truth of the matter asserted by these other persons.” People v. Williams, 289 Ill. App. 3d 24, 31 (1997).

The prosecutor had a good-faith argument that when she elicited from the deputy the testimony that “the vehicle checked to defendant,” her purpose in doing so was to explain to the jury why the deputy had directed a second deputy to transport defendant back to the scene, not to prove that the vehicle really was registered to defendant.

Given that purpose, the deputy’s testimony that “the vehicle checked to defendant” would not have been hearsay because, instead of being offered for its truth (see Ill. R. Evid. 801(c) (eff. Jan. 1, 2011)), the testimony would have been offered to explain the police investigatory actions.

We see no basis for accusing the prosecutor of misconduct when, only once, her witness briefly inserted uncalled-for information in his answer. Therefore, the error that defendant alleges, prosecutorial misconduct, is nonexistent in this case. There was no intentional and pervasive prosecutorial misconduct in this case.

On the strength of that presumption, we find no error, let alone plain error.

Holding

A jury found defendant, William E. Day, guilty of driving under the combined influence of alcohol and cannabis (625 ILCS 5/11-501(a)(5)) and driving while his driver’s license was revoked (id. § 6-303(d-2)). He was sentenced to prison.

See Also

What It Means To Be In Actual Physical Control Of A Vehicle.

Episode 057 – People v. Boling, 2014 IL App (4th) 120634 (March) (prosecutorial favorite “other purpose” is to explain steps in a police investigation.)

Episode 315 – People v. Ochoa, 2017 IL App (1st) 140204 (February) (murder conviction reversed twice because of the exact same “steps in the police investigation” error)

Episode 448 – People v. Horine, 2017 IL App (4th) 170128 (December) (hearsay evidence during this SSS hearing not admitted to demonstrate the police course of conduct in the investigation)

Episode 339 – People v. French, 2017 IL App (1st) 141815 (March) (Hearsay Involves Implied Information And Watch Out For “Course of Conduct” Exceptions)